TARPAN KUMAR DAS vs CENTRAL BUREAU OF INVESTIGATION

1.This Criminal Petition, has been jointly filed by Sri Tapan Kumar Das, Sri Madhav Chandra Borah, Smt Lila Boro and Sri Paresh Das, under Section

482 read with Section 397/401 of the Code of Criminal Procedure, challenging the order dated 9.10.2014 passed by the learned Court of Special

Judge, CBI, Additional Court No. 3, Assam, Guwahati in Special Case No. 1/2011, whereby the learned Court framed charges against the petitioners

for the offences under Section 120B IPC read with Section 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. The petitioners have also

prayed for quashing of the proceedings in Special Case No. 1/2011. The case of the petitioners is that they are employees of Police Department.

Petitioner No. 1, 2 & 3 are Armed Branch Sub-Inspectors whereas petitioner No. 4 is a Constable. The facts of the case may be precisely put as

follows;

That one Nirmalendu Bhattacharya lodged an FIR with the Officer in Charge, CID Police Station, stating inter alia that the pay and allowance of

10th APBn were fraudulently withdrawn to the tune of Rs 18,89,57,335/- much in excess than the actual dues and that the respondents were co-

conspirators in the alleged excess withdrawals. On completion of investigation, a chargesheet was laid against the petitioners for the offences under

Section 120B/420/409/477A of Indian Penal Code read with Section 13(1)(c) and 13(1)(d)/13(2) of the Prevention of Corruption Act. The petitioners

further contend that by the impugned order, dated 9.10.2014, the learned trial Court framed charges against the petitioners for the offences under

Section 120B IPC read with Section 13(1)(c) and 13(1)(d)/13(2) of the Prevention of Corruption Act. The common case of the petitioners is that they

are no way involved with the commission of offence and the materials collected by the Investigating Agency do not justify the allegations that the

petitioners were co-conspirators in the excess drawal of Rs 18,89,57,335/-. The petitioners submit that the learned Court below failed to appreciate

that by virtue of their status in service the petitioners were not entitled to prepare salary bills rather; they had only filled the forms of pay bills by

copying the figures from the acquittance rolls as provided by the General Branch of 10th APBn.

I have heard Mr. T Deuri, learned Counsel appearing for the petitioners and learned counsel, Mr. SC Keyal, appearing for the respondents/CBI.

None appears for the remaining respondents.

The petitioners urge for quashing the supplementary chargesheet, dated 24.12.2012, and also the order, dated 24.9.2014, whereby charges were

framed against them. In State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, the Hon’ble Supreme Court laid down the following

illustrative guidelines to be taken into account while considering the quashment of FIR.

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law

enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under

Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein

such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be

possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of

myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety

do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,

justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted

by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.â€​

Now, it is not denied by the petitioners that during the period of excess drawal of money they were part of the bill preparation process. Whether the

disputed bills were prepared with a criminal intent or an act of innocuous mistake is a question of fact. It would not be proper for the Court to

adjudicate at this stage the lack of mala fide on the part of the petitioners. It needs to be pointed out here that petitioners are also charged with

entering into criminal conspiracy. The elements of criminal conspiracy are questions of fact and it would not be proper for this Court to come to a

finding whether the acts of the petitioners fall within the realm of good faith. Hence, not only the allegations in the FIR and supplementary chargesheet

give rise to a cognizable offence, but also the fact that the petitioners had prepared the disputed bills gives rise to a suspicion about their complicity.

Now, coming to the scope of Inherent as well Revisional jurisdiction of High Court vis-Ã -vis framing of charges it would be proper to reproduce

herein the principles laid down in the case of Amit Kapoor v. Ramesh Chander, reported in (2012) 9 SCC 460 wherein the Hon’ble Supreme

Court has culled out several principles regarding the jurisdictional distinction in the two provisions Section 397 and Section 482. The principles are as

follows;

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is

to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the

Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

Emphasis supplied

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted

therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever

reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in

conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might

be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in

exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution

and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the

offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a

“civil wrong†with no “element of criminality†and does not satisfy the basic ingredients of a criminal offence, the court may be justified in

quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to

determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the

allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating

agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a

criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by

an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the

record and documents annexed therewith Where the by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be

more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a

view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its

jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice

favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of

which alone, the courts exist.

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of

extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. factual foundation for an offence has been laid

down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been

stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.

Emphasis supplied

In view of the materials on record against the petitioners and the legal principles discussed as above, this Court finds no merit in the contention that

the supplementary chargesheet and consequent framing of charge against the petitioner need to be quashed.

Now, coming to the other plea raised by the petitioners regarding absence of prosecution sanction under Section 197 CrPC, in the present case,

sanction under Section 19 of the Prevention of Corruption Act, 1988 has already been obtained in order to prosecute the petitioner. Whether the acts

of the petitioner are such that sanction under Section 197 CrPC would also be necessary is a question which can be determined at any stage of the

trial. It would not to be proper for this Court examining the present application in its inherent jurisdiction to adjudicate this issue of fact.

In the result, this Criminal petition is found devoid of merit and is accordingly dismissed.

Interim order(s), if any, passed earlier stands vacated.

A copy of this order be communicated to the learned Special Judge, CBI, Additional Court No. 3, Chandmari, Guwahati.